Law School Outlines - Civ_Pro_2

Discovery: Scope: FRCP 26(b) [NEW RULE] Power: Material may be discovered if it is: • Relevant to the claim or defense of any party ♦ “Including existence, description, nature, custody, condition and location of …” • Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. ♦ Explanation of relevance should show how admissible evidence could arise from the requested material. ♦ General information may lead to specific admissible evidence. Blank v. Sullivan & Cromwell (487) ♦ Material that can only lead to evidence proving something not pleaded/not raised below is not relevant. Steffan v. Cheney (489) • For good cause, the court may order material relevant to the subject matter ♦ Make a motion for the court to order. Exclusions • Privilege, FRCP 26(b)(5): ♦ Privilege blocks information sources. ♦ Protects information communicated between lawyer & client: “How fast were you going” is OK, but “how fast did you tell your lawyer you were going” is not. ♦ In federal court, Upjohn defines extent of privilege in corporate employees: discussions with corporate counsel about actions within the scope of employment. ♦ May be waived by treating the information as non-privileged. • Work Product, FRCP 26(b)(3): Information prepared in anticipation of litigation or for trial or for another party or that party’s representative discoverable if: Hickman (525) ♦ Party seeking discovery has substantial need of the information ♦ Party is unable without undue hardship obtain equivalent information elsewhere ♦ Court will review the material to protect against disclosure of non-facts: ideas, conclusions, theories or opinions of the attorney. • Pain in the ass, FRCP 26(b)(2)(1) – (iii): Unreasonable cumulative, duplicative, obtainable from other, less expensive source, party has already had ample opportunity through discovery to obtain the information or the burden/expense outweighs the benefit. How To: • To discover, send request to party or request and subpoena to non-party • To avoid discovery, make 26(c) motion for protective order only after good faith effort made to resolve the dispute without the judge. • To compel discovery, make 37(a) motion after good faith effort to resolve the dispute. Timeline: • Meeting between parties, 21 days before scheduling conference. FRCP 26(f). No discovery before this meeting. • Exchange of mandatory disclosure, 14 days after 26(f) meeting. FRCP 26(a) • Scheduling conference with Judge, within 90 days of defendant’s appearance and 120 days after service. FRCP 16(b) Types Mandatory Disclosure: FRCP 26(a) [New Rule] • Made or objected to within 14 days after scheduling conference (26(f) conference.) • Includes: ♦ Name and address of all people likely to have discoverable information, identifying subjects. ♦ Copy or description by category of all documents/data disclosing party may use to support claims/defenses ♦ Computation of damages & support for such. ♦ “For inspection and copying” any insurance agreement that may pay. ♦ Experts’ names & reports of their opinions, qualifications, 90 days prior to trial. 26(a)(2)[OLD] ♦ Witnesses, exhibits, etc, 30 days prior to trial. 26(a)(3) [NEW] • Information used for impeachment excepted from mandatory disclosure. Asking Questions: • Interrogatories: Parties ♦ Limit, 25 questions per person, unless court grants permission. ♦ Details in FRCP 33 • Depositions: Parties and non-parties ♦ 10 per side, and each person may only be deposed once, unless court grants permission. ♦ Attendance may be compelled by subpoena, Rule 45. ♦ Notice of deposition must be given to all parties. ♦ Details of procedure in FRCP 30-32 Examining Stuff • Production of documents, FRCP 34 ♦ For parties, solely a request is necessary ♦ For non-parties, a subpoena under FRCP 45 is necessary. ♦ May require documents be photocopied & delivered, or allow requesting party to visit the documents. • Medical examinations of parties, solely for good cause. FRCP 35 Request for an admission, FRCP 36 • Requests for an admission of the truth of something within the scope of 26(b)(1) • Unless specifically denied, the matter is admitted. Enforcement If party fails to respond to request: • FRCP 37(a) motion for order to comply with discovery order. • If granted, opposing party must pay fees associated with motion. 37(a)(4) • Requires good faith effort to resolve dispute without the court. Improper certification of discovery request or response: FRCP 26(g) • Certification includes certification that discovery is not unduly burdensome or expensive. • On court’s own initiative or on motion. • Required • Sanctions must be “appropriate,” may include fees and may be made against lawyer, party or both. Failure to comply with court’s order: FRCP 37 • “Court may make such orders in regard to the failure as are just”, including: Admission of fact sought to be discovered, Dismissal of claim, Striking portions of pleading, Dismissal of case and/or Contempt • Failure to comply with FRCP 26(a): ♦ Information will be inadmissible. ♦ On motion, after hearing, in addition or in lieu of above, court may impose additional sanctions, including fees. • Failure to comply with FRCP 36: ♦ Party may make a motion ordering expenses incurred in proving issue ♦ Motion should be granted unless: request was objectionable, admission was of no importance, there were reasonable grounds to believe party could prevail at trial or other “good reason.” • Sanctions are found inappropriate if the trial judge abused their discretion, ♦ Abuse of discretion: a litigant’s rights are materially prejudiced. ♦ Including their discretion to properly manage discovery. Chadusama (549) Motions: Summary Judgment: FRCP 56 No genuine issue of material fact: A party cannot meet their burden of production. • Facts may be supported by affidavits based on personal knowledge: only experts’ opinions are relevant. Visser (636) • Must allow a “reasonable period” for discovery 56(f). • Interrogatories, deposition transcripts, etc. are sufficient evidence. • Credibility of statement not at issue, probability of inference may be at issue: A bare timeline that could prove a material element is not enough to dispute MSJ ( Visser, 636), but a timeline plus additional alleged & undisputed facts is enough to allow a rational jury to draw an inference. ( Flynn v. Goldman Sachs) Movant’s Burden: • Non-Burdened Party: ♦ Show burdened party cannot support or has insufficient evidence to support a material element. ♦ Standard: A rational jury could not find for the non-moving party. Visser (636) ♦ May show evidence disputing an element or absence of burdened party’s evidence. Celotex (630) • Burdened party must show that non-burdened party cannot dispute movant’s evidence on every element of the claim, AND that movant’s evidence will meet their burden of persuasion at trial. Non-Movant’s Burden: If the motion would be sufficient on its face, non-movant must prove that there is an issue of material fact. • Evidence of material fact must be admissible. • All ambiguities and inferences should be resolved in favor of the non-moving party. Celotex (630) • May not make ‘inferences upon inferences.’ Houchens I43) Judgment as a Matter of Law (Directed Verdict): FRCP 50(a) Granted if a rational factfinder cannot find that the nonmoving party has met their burden of production or persuasion. • Where two propositions are exactly equally probable, a rational jury cannot [as a matter of law] find that one “more likely than the not” occurred. Reid (713) • A rational jury must be able to articulate support why one inference was more likely than another. If “there is such a complete absence of evidence supporting the verdict that the jury’s finding could only have been the result of sheer surmise or conjecture.” Flynn 2 • May not rely only on assertion of inferences and the jury’s disbelief of opposing witnesses. • Positive evidence must be asserted. Motion may be made at any time prior to jury verdict. Judgment as a Matter of Law/Judgment Notwithstanding the Verdict (JNOV): FRCP 50(b) A renewed 50(a) motion To defend a JNOV, must present affirmative evidence to support a claim or defense. Must still resolve inferences in favor of non-moving party. New Trial: FRCP 59 Motion may be made either by judge or by a party. Frequently made in the alternative to a JNOV – 50(c) allows party to combine the two motions. Standard: • If the verdict is against the weight of the evidence. Lind (736) ♦ This standard cannot be used to impose the judge’s credibility decisions. ♦ Subject to close appellate review – must be in accordance with ascertainable legal standards. • If the evidence presented to the jury was somehow tainted. FRCP 60 allows relief from a judgment or order due to serious or purposeful mistakes. Joinder: Joinder of Claims By Plaintiff: FRCP 18 Any party asserting a claim to relief (as plaintiff, third party plaintiff, asserting cross-claim or counterclaim) May join, either as independent or alternate claims, as many claims as they want to. As long as those additional claims have jurisdiction. • Original claim must have jurisdiction under §1331, §1332 [or §1367 for cross-claims, counterclaims or third party claims] • Joined claim must have jurisdiction under §1331, §1332 or §1367. Judge can sever the claims for convenience under FRCP 42(b) By Defendant: FRCP 13 Compulsory counterclaims • Arise out of the same transaction or occurrence that is the subject matter of the plaintiff’s claim: Plant (895) ♦ Are the issues of facts & law largely the same in claim and counterclaim? ♦ Would res judicata bar subsequent suit? ♦ Will substantially the same evidence support both claim and counterclaim? ♦ Or is there any logical relation between the claim and counterclaim? ♦ May examine policy issues why the claim should not be considered compulsory [therefore having jurisdiction, as same factors apply.] • Does not require unjoinable third parties and is not already pending • Will generally have §1367 jurisdiction [“same claim or controversy”] Permissive counterclaims: All other claims. Joinder of People Additional Plaintiffs: Permissive joinder of multiple Plaintiffs into a single suit: FRCP 20 For the convenience of the court, many actions may be combined into one, or divided according to FRCP 42(b) All actions must arise out of the same “transaction or occurrence.” • May assert right to relief jointly, severally or in the alternative. • Transaction/Occurrence may be a series or policy: Moseley (904) ♦ “All logically related events entitling a person to institute a legal action against another.” ♦ Where each of ten plaintiffs alleged injury by the same policy, their claims could be merged. • AND common questions of law and/or fact must arise. Additional Defendants: Interpleader: permissive joinder of defendants where multiple defendants may expose plaintiff to double or inconsistent liability on counterclaim. FRCP 22 Impleader: Third party liable to defendant for some or all of plaintiff’s claim against defendant. FRCP 14 [NEW] • Where third party is derivatively or contributorily liable to defendant. ♦ NOT where third party is liable INSTEAD OF defendant. Watergate (911) ♦ For example – insurance company, manufacturer of defective merchandise, joint tortfeasor… • After successful impleader, FRCP 14 gives permission for all kinds of additional claims involving third party. • Note: §1367 DOES NOT grant jurisdiction to plaintiff’s claims against third party defendants if plaintiff’s original action rests on diversity. Kroger (920) Compulsory Joinder: FRCP 19 Policy: Judicial efficiency & to prevent people from being subject to contradictory judgments Who should be joined: FRCP 19(a) • Complete relief cannot be accorded without the party • The person claims an interest and in their absence: they will be unable to protect their rights or parties may be subject to multiple conflicting judgment • The court may order third parties joined, or existing parties may raise a motion to dismiss for lack of proper joinder. If that person cannot be joined, the action should be dismissed unless: FRCP 19(b) • In equity and good conscience the action should proceed because of: ♦ The extent a judgment in a required party’s absence might be prejudicial to existing or absent parties ♦ The extent to which the judgment can be shaped to lessen prejudice ♦ Whether a judgment in the party’s absence will be adequate ♦ Whether the plaintiff will have a remedy if the action is dismissed for nonjoinder. • “In equity and good conscience” Helzberg (930) ♦ Where someone may be subject to inconsistent or incompatible judgments because they entered into incompatible contractual obligations, the action will not be dismissed. ♦ A third party’s rights under a contract not being litigated are not considered – Otherwise, a defendant’s unsecured creditors could become involved in a very large tort suit… Intervention: FCRP 24 “By Right.” FRCP 24(a): Grutter (6th Cir.) • The motion must be timely • Intervenor must have an interest in the property or transaction that is the subject of the suit. ♦ Does not require standing or a specific legal or equitable interest!?! ♦ Chamber of commerce has interest in restrictions on corporate political donations due to role in political process; prospective & past students have interest in affirmative action programs. • The interest must be at risk: Requires only a probability that the interest is at risk. • Existing parties must not be likely to adequately represent the intervenor’s interests. ♦ Will probably not make all of intervenor’s arguments. ♦ Existing party has smaller interest at risk and may not defend as vigorously. Permissive. FRCP 24(b) • At the discretion of the court • On timely application • If the applicant’s claim or defense has a question of law or fact in common with the main action. • And the intervention will not unduly delay or prejudice the adjudication of existing parties. By permission of the parties Preclusion Claim Preclusion/Res Judicata/Estoppel by Judgment Which Law In federal court, the preclusion law of the jurisdiction that decided the original case applies. Some states apply their own preclusion law to other courts’ decisions. The Same Claim Writ/Code pleading rule: • Same “cause of action” ♦ “Common core of operative fact,” “identity of evidence” ♦ Focus is on the facts necessary to sustain the cause of action not the facts that caused the action to arise. ♦ If different facts will be presented in second suit, the second claim is not barred. • In jurisdictions that still use code pleading, the rule works much better, as the claim arising out of the same transaction/occurrence may not have been allowed to be joined. Federal/Restatement rule: • When a valid and final judgment rendered in an action extinguishes a plaintiff’s claims pursuant to the rules of merger on bar … the claim extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction or series of connected transactions out of which the claim arose • What factual grouping constitutes a transaction and what groupings constitute a series are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage. The Same Parties Total Identity Privity. Searle (818) • “So identified with another that he represents the same legal right.” • Mutual or successive rights in property. • Vicarious liability, other substantive concepts which treat B as a substitute for A. BUT agents ARE NOT in privity with principals, [according to Utah S Ct] unless they openly defend the action. • An express agreement to be bound by the first judgment confers privity. Due Process: one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process. Final Judgment on the Merits If the first court did not have jurisdiction, [whether or not the first claim was dismissed] the second claim is not precluded. Gargallo (830) If the second claim was not ripe at the time of the first, it is not precluded. Dismissals for sanction, etc. are final judgments. Appeals: In general, a judgment pending appeal is final, but not in all states. In states with code pleading, and without liberal leave to amend a complaint, a demurrer may not be considered a final judgment. Under FRCP, it is a final judgment. Issue Preclusion/Collateral Estoppel/Estoppel by Verdict An Issue, essential to the first judgment, actually litigated and determined in a final judgment. If a judgment was based on the fact that either one or another allegation was not true, the truth of either may be re-litigated individually. [But the fact that they not both true cannot.] Parks (836) • Trial level decisions in the alternative are frequently not preclusive, however appellate decisions in the alternative are usually preclusive as to both issues. • General verdicts for defendants are typically not issue preclusive. Generally default judgments and dismissals due to sanction are not issue preclusive. Against a party who has had the opportunity to be heard. Offensive: Plaintiff uses collateral estoppel to prevent defendant from asserting a defense it previously lost. Only available at trial judge’s discretion if: Parklane (845) • Plaintiff could not easily have joined first suit. • Judgment asserted for preclusion is not inconsistent with other judgments. • Defendant had the motive to vigorously litigate • No procedural opportunities exist in 2nd trial which were unavailable in first. [i.e. first trial was in small claims court: right to jury trial in 2nd action is not an additional procedural opportunity.] • No other prejudice to defendant would be caused by preclusion. Defensive: New defendant uses collateral estoppel to prevent plaintiff to assert a claim they had already litigated and lost against another defendant.